Clelland v. Clelland
| Decision Date | 31 December 1921 |
| Parties | JAMES CLELLAND, Appellant, v. MAGDALENE S. CLELLAND and M. J. WATTENBARGER |
| Court | Missouri Supreme Court |
Appeal from Sullivan Circuit Court. -- Hon. Fred Lamb, Judge.
Affirmed.
D. M Wilson for appellant.
(1) The action right of a widow to dower before an assignment of it to her is not such an estate or interest in land as can be levied on and sold under an execution against her; the dower must be assigned to her. Waller v. Mardus, 29 Mo 25. (2) A sale of a widow's interest in her husband's real estate before dower is assigned to her is void, and the sheriff's deed conveys no title; and this is true no matter if the full value of the interest has been paid. The rule must be uniform, and cannot be made to depend upon the amount realized by the sale. Waller v. Mardus, 29 Mo. 25. (3) Wattenbarger did not ask to have the money he had paid the sheriff returned to him. The prayer of his answer was that the void title he acquired as he alleged by his deed be made valid, and that the widow's dower be vested in him. This the trial court under the above authority had no right to do. (4) No one has the right to be made a party defendant over the objection of the plaintiff. Sec. 1732, R S. 1909; Boyer v. Hamilton, 21 Mo.App. 520; Kortjohn v. Seimers, 29 Mo.App. 271; Skinner v. City of Slater, 159 Mo.App. 589; State v. Railway, 193 S.W. 932; Addison v. Bank, 226 S.W. 322. (5) But even if the right to be made a party be contended, it is a right discretionary with the court, and the burden is on the movant to not only set out the grounds entitling him to be made a party defendant, but also to prove them. Such discretion is not properly exercised, but is abused, when without any proof being offered and on only a general allegation that one "is interested in the subject-matter of the action" he is permitted to become a party and file an answer. (6) A motion to strike out an answer, or a count of an answer, is in reality a demurrer and should be so considered and treated. Shohoney v. Railroad, 231 Mo. 131; Clark v. King, 178 Mo.App. 381.
W. F. Calfee and J. P. Painter for respondents.
(1) The motions of appellant to strike out portions of respondents' answers are not properly before the court. Having failed to file bill of exceptions, same is waived by abandoment. Shohoney v. Railroad, 231 Mo. 148. (2) Any person may be a defendant who has or claims an interest in the controversy adverse to the plaintiff. Sec. 1158, R. S. 1919; State to use v. Hudson, 86 Mo.App. 501. (3) The doctrine of estoppel is far reaching in its effect, extending to real as well as personal estate. 21 Corpus Juris, pp. 1117, 1118; Bank of Neelyville v. Lee, 193 Mo.App. 537; Rice v. Bunce, Admr., 49 Mo. 231; Ming v. Olster, 195 Mo. 460.
WHITE, C. Railey and Reeves, CC., concur.
The suit is to have dower assigned in certain land, in Sullivan County; the plaintiff was a judgment creditor of the alleged doweress, Magdalene S. Clelland, the widow of Robert C. H. Clelland, who died intestate in May, 1912, seized of the land in dispute. In March, 1918, the plaintiff recovered judgment against her in the sum of six thousand odd dollars. These facts are set up in the petition, which then alleges that no dower ever has been assigned to the defendant Magdalene S. Clelland, and prays that it be assigned to her.
The suit was brought under the provision of Section 347, Revised Statutes 1919, which gives a creditor of a widow the right to institute a proceeding to have dower assigned to her, manifestly so that he may subject her interest to the payment of his debt.
The action was begun against Magdalene S. Clelland alone. On the 9th day of November, 1918, M. J. Wattenbarger filed application to be made a defendant, which application was sustained; afterwards he filed a separate answer, in which he admitted the facts stated in the petition, and alleged that the plaintiff had caused execution to be issued upon the judgment which he had obtained against the defendant Magdalene S. Clelland, and caused her interest in said land to be levied upon and sold under said execution on the tenth day of May, 1918; that at said sale the defendant Wattenbarger became the purchaser of the land for the price of $ 150, which amount he paid to the sheriff, receiving the sheriff's deed to said land; that the purchase price paid the sheriff as aforesaid was paid to the plaintiff, and that the plaintiff received and retained the same, and is therefore estopped from questioning the validity of the sale under said execution.
The defendant Magdalene S. Clelland also filed a separate amended answer, setting up the same facts regarding the alleged estoppel.
On the trial of the case it was shown that at the execution sale the defendant Wattenbarger was the highest bidder and paid the sheriff the sum of $ 150; that the sheriff, after deducting thirty dollars, the costs and expenses of the sale, delivered his check for the balance -- one hundred and twenty dollars -- to the attorney for the plaintiff. There were several bidders at the sale, including plaintiff's attorney, Mr. Wilson.
Mr. Wilson testified that the sheriff's check for one hundred and twenty dollars was sent to his client, the plaintiff, and the plaintiff returned it to him, the attorney; that he had not cashed it, but had lost it. In the meantime he had found the sale was illegal, and was willing to return the check to the sheriff if he could find it, though he thought Wattenbarger was not entitled to it. On cross-examination he asserted that he still had the check, but he had told Wattenbarger that he would pay him back his hundred and fifty dollars. There was no evidence of a tender.
On this evidence the court found the issues for the defendants. The judgment recites the facts in relation to the execution, sale, and purchase by Wattenbarger, the payment of the money to the sheriff, the execution and delivery of a sheriff's deed to Wattenbarger, and finds that the plaintiff is estopped to maintain the suit.
The appellant's abstract of the record states that on the hearing of his motion for new trial, evidence was offered and received by the court showing that the plaintiff -- evidently since the trial -- had paid back to Wattenbarger the one hundred and fifty dollars, purchase price. Respondent asserts the record shows no such fact. The court overruled the motion for new trial and plaintiff appealed.
I. The common-law rule is that the widow's dower, consummate upon the death of her husband, is not real estate, but a mere chose in action, or a cause of action, and cannot be conveyed or levied upon as real estate until it be assigned. [Waller v. Mardus, 29 Mo. 25; Young v Thrasher, 61 Mo.App. 413; Carey v. West, 139 Mo. 146, 40 S.W. 661; Walker v. Alverson,...
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